The recent vote in Parliament to extend ICAC’s powers to allow ICAC to initiate criminal charges continues the systematic erosion of governance standards in NSW – particularly as they relate to ICAC – under the Baird Government. To be sure the ICAC and Saint Michael didn’t get exactly what they wanted, but it was near enough.

To recap this is what happened- Since its inception ICAC has not been legally allowed to initiate criminal charges. ICAC was required to make recommendations to the DPP who would then independently assess the evidence and initiate charges when and if they decided to do so. The idea of ICAC initiating charges was expressly voted down by the NSW Parliament in 2005 after a review of ICAC’s powers.

Notwithstanding its clear legal constraint ICAC deliberately chose to ignore the law and did purport to initiate criminal proceedings against Mr Maitland and McDonald in the District Court in Maitland in May 2015. The matter was challenged and the Court threw out ICAC’s court attendance notice. As usual ICAC then went running to the Premier and as usual Mr Baird immediately decided to change the law. Not surprising after the Premier’s atrocious form in retrospectively changing the ICAC law after the High Court ruled ICAC’s acts illegal in the Cuneen case.

So Mr Baird got the unfortunate Attorney General Mrs Upton, whose career must just about now be over, to embed the legislation in a raft of other “minor” changes so that no one would notice. He and the AG then decided not to mention the matter to their own party before the vote so it sailed through the Lower House!

Unfortunately for them the Upper House – including some of their own MP’s – wasn’t so compliant. Even Labor started asking questions. Eventually the legislation was changed to require that ICAC had to obtain the written permission of the DPP to initiate proceedings – and despite objections by the minorities – through it went.

What a strange compromise! If the DPP has really reached the view that a criminal charge should be made – to the extent that it is willing to give written permission to ICAC – then why do you need ICAC to initiate – why not just do it at the DPP? Who is the monkey and who is the organ grinder here?

It didn’t take too long for this question to be answered when it was revealed (in the Murray Kear case) that ICAC form was to only provide the DPP with what it had decided was good for the DPP to hear. ICAC supressed exculpatory evidence because it didn’t suit its required predetermined outcome for the case. So we are left with the conclusion that ICAC will deliberately mislead the DPP to get its written permission. Imagine how much this is all costing the taxpayer by the time these cases actually get heard and fail (as they usually do!).

But typically there was no explanation or apology from ICAC – who is supposed to be a model litigant. Clearly ICAC is reserving the right to behave this way again in the future, to hide information from the DPP and compromise the DPP whenever it suits them. This system is a huge fight waiting to happen.

Further examples of ICAC’s unfettered behaviour are littered through the newspapers. You cant get a transcript of ICAC’s in camera hearings even if you were involved yourself, and ICAC would certainly not tell you if someone’s in camera evidence actually ran counter to their own “evidence”. And then there are the consistent leaks to newspapers – none denied.

So much for the Premier’s part in the ICAC governance system – he is a big part of the mess – all in the name of stamping out corruption. Are we led to conclude that the best way of stamping out corruption is to encourage ICAC corruption.

What about the other features of the ICAC governance system? Firstly there is an ICAC Inspector who, in theory, is able to oversee ICAC’s activities. Only a theory of course because the Inspector’s office is very lightly funded and is practically incapable of dealing with the rampant ICAC as admitted by the Inspector in his recent Annual Report. The office of Inspector wasn’t even occupied for a good period through 2013 while Commissioner Ipp was running rampant stating that he and only he would decide what evidence he would choose to hear. I suppose its best not to have an Inspector when such statements are being made.

Then we have the Parliamentary Committee which in fact has no teeth to the point where the Commissioner of ICAC just point blank refuses to answer questions or provide information on what she does. And she’s right – they appear to have no real ability to exercise control over her at all. Was the Parliamentary Committee consulted before the proposed changes to the law over the past year? No record of that. We are left to conclude that the Committee is a smoke screen of irrelevance put there by the Premier to give the illusion that there is a governance system. Not that we are saying anything about the Committee members themselves – the evidence is that they want to do the right thing but the Premier is backing the ICAC Commissioner instead of them.

So we get back to the Premier. He was in the cabinet room when Acacia and Spicer and all the other hearings were going on. He knows all of what is written above. Its not in his best interests to fix it, however, because he was there.